Disability, Discipline, and Illusory Student Rights

Abstract

Congress enacted the Individuals with Disabilities Education Act (IDEA) to prevent the widespread exclusion of children with disabilities from public schools. While today’s schools no longer formally exclude students with disabilities, they routinely achieve this same end through school discipline policies. In fact, students with disabilities are at greater risk of suspension and expulsion than any other student population. The suspension rate for students with disabilities is more than twice that of their peers. Likewise, one out of every four students arrested at school is a student with disability. These high rates of discipline, in turn, help funnel students with disabilities into juvenile detention centers at alarmingly high rates.

The IDEA contains statutory provisions that ostensibly guard against these problems. In particular, the Act prohibits schools from suspending and expelling students for behavior that is rooted in their disabilities. Based on original empirical research, this Article demonstrates that these provisions, while well-intended, are woefully inadequate to achieve their goal. First, the evidentiary standard for demonstrating that misbehavior is rooted in a disability is unfeasible. It requires students to prove their disability caused the misbehavior, even when evidence to make this showing is essentially unavailable. Second, the statutory provision presumes that decisionmakers can reliably judge whether a particular misbehavior is rooted in disability. This assumption is flawed because disabilities and the behaviors that they produce vary across individuals, time, and circumstance. Thus, neither science nor the evidence typically presented at discipline hearings allows for concrete distinctions between disability-related and nondisability-related misbehavior. The confluence of these two points essentially requires students to affirmatively demonstrate the unknowable, tilting the standard strongly in favor of excluding students with disabilities—the exact opposite of the IDEA’s overall goal.

This Article argues that current flaws can be mitigated by altering the burden of proof and expanding the type of data that schools must gather and rely upon in making decisions regarding the exclusion of students with disabilities.